Docs applications and deadlines Flashcards
Time limit/ method/ deemed service
Claim form (and particulars of claim attached)
Time limit to send: 4 calendar months after issue of claim
Method: First class post and electronic only if D or legal rep has indicated in writing that it will accept in this way
DEEMED SERVICE: SECOND business day after the step required - e.g. put in post
Time limit/method/ deemed service
All other docs:
Particulars of claim (if served separate
Defence (and counterclaim)
Acknowledgement of service
Part 20 indemnity (from defendant)
Time limit: 14 days from deemed service of particulars
Deemed service for all other documents - if made via personal service/delivering doc to permitted address/fax or email
If served before 4:30pm on a business day = on that day
After 4:30pm = on the next business day
Deemed service for all other docs - posted by FIRST CLASS POST or DX
2nd day after it was posted if that day is a business day. If not then next business day
Amendments to statements of case
Grounds BEFORE expiry of limitation and who is it available to? (2 points)
- After filing but before service = can be made any time
- After filing and after service = only with
(a) written consent of all the parties; or if not
(b) Permission of the court
Amendments to statements of case when will the court allow it? After expiry of limitation period (only 3 circumstances)
Court will only allow in 3 circumstances:
1. To add or substitute a NEW CLAIM - if this arises out of the same or substantially the same facts as an existing claim
2. To correct a genuine mistake as to the NAME of a party
3. To ALTER the CAPACITY in which the party claims
After acknowledgement of service - how long does defendant have to file a defence?
within 28 days of the deemed service of the Particulars of Claim
Grounds for part 18 requests for further information
Court will grant an order if satisfied that the request is confined to matters that are:
1. reasonably necessary and proportionate
3. To enable the applicant to
(A)prepare their case
or
(B) understand the case against them
Part 18 request - if successful the party can be ordered to:
- Clarify any matters in Dispute; or
- Give additional information on any such matter
[useful if case has weak prospects of success]
Default judgement - when can it be entered
- The particulars of claim have been served upon the defendant; and
- The defendant has not filed a defence or acknowledgement of service
Amendments to statements of case before expiry of limitation period but after filing and service - what are the grounds if Crts permission is required?
Discretionary grounds:
1. Taking into account the overriding objective [dealing with the case justly and at a proportionate cost]
2. Court will need to strike a balance between (a) injustice to the applicant - if an amendment is refused vs (b) injustice to opposing party or other litigants if permitted.
Setting aside default judgement - mandetory ground
- If the judgement was entered too early (before expiry of the relevant period to file either acknowledgement/defence)
OR - If the claim has already been paid
Setting aside default judgement - discretionary ground
- The defendant has a real prospect of successfully defending the claim [merits of the case]
or - There is some other good reason why the defendant should be allowed to defend the claim [ill or on holiday so couldn’t comply w/ time constraints, pressures of work not enough]
Summary judgement can be entered by who and what are the grounds?
The court may give summary judgment against a claimant or defendant on the
WHOLE of a claim or on an ISSUE if:
1. it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
2. there is no other compelling reason why the case or issue should be disposed of at a trial.
Other good reason why the default judgement should be set aside - Denton v White test
- Promptness with which D applied
- Seriousness of failure to comply
- Reason for failing to comply
- Ask court to take into account all the circumstances of the case - e.g.
* any good conduct from D;
* Any errors/ misconduct/weakness of C (in the case & procedurally)
* Any prejudice that D will suffer if the default judgement is not set aside
Application to strike out the claim or defence - test/grounds
Applicant needs to show just one of these grounds exist:
1. The statement of case discloses no reasonable grounds for bringing or defending the claim
2. The Statement of Case is an abuse of the courts process/ otherwise likely to obstruct the just disposal of the proceedings; or
3. There has been a failure to comply with a rule or PD/ Court order
What orders can the court make for default judgement?
- Judgement on the claim - Claimant has succeeded & the matter will proceed to enforcement
- Defendant pays claimants costs - Summary application dismissed = case proceeds to trial
Costs: Loser of the application pays the winner of the app’s cost
What orders can court make in respect of summary judgement application?
- Where the claim may succeed but its improbable - court may make a conditional order
- Judgement against D (i.e. grant summary judgement to C)
Costs = named party’s costs so winner pays loser and judgement is entered and proceedings end (subject to enforcement) - Dismissal of C’s claim = proceedings end and C pays D’s legal costs
- Conditional order - requires party to either pay a sum of money into court or take specified step in relation to his claim/defence - dismissal if they dont comply
Adding substituting or removing a party - grounds for application made within the limitation period
It is DESIRABLE to:
1. Add a NEW party to resolve matters in dispute; or
2. To romove a party; or
3. To SUBSTITUTE a party where the existing party’s interest or liability has passed to them
Adding removing or substituting a party - grounds for application made outside the limitation period [4 points]
- If the limitation was CURRENT when the proceedings were started; and
Either
2. The original party was named by mistake/
3. The original party has died or subject to a bankruptcy order (and their interest or liability has passed to the new party)
4. The claim cannot property be carried on without the new party
